Levin & Amsel
[2023] FedCFamC2F 955
•27 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Levin & Amsel [2023] FedCFamC2F 955
File number: SYC 151 of 2023 Judgment of: JUDGE LIOUMIS Date of judgment: 27 July 2023 Catchwords: FAMILY LAW – CHILDREN – Final parenting orders – International relocation – Unacceptable risk – Undefended hearing Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 69ZN, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.33, 5.11, 10.13
Cases cited: Bant & Clayton [2015] FamCAFC 222
Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen (2022) FLC 94-092
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 136 Date of hearing: 27 July 2023 Place: Sydney For the Applicant: The Applicant appeared in person For the Respondent: The Respondent did not appear Solicitor for the Independent Children's Lawyer: Ms Bennett of Legal Aid NSW ORDERS
SYC 151 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEVIN
Applicant
AND: MS AMSEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
27 JULY 2023
ON A FINAL AND UNDEFENDED BASIS THE COURT ORDERS THAT:
1.Mr Levin (hereinafter “the Father”) have sole parental responsibility for the children X born in 2010 and Y born in 2014 (hereinafter collectively “the children”).
2.As from August 2023 the Father be permitted to relocate the children to Country B.
3.The children live with the Father.
4.The children communicate or spend time with Ms Amsel (hereinafter “the Mother”) as agreed by the Father.
5.Within 21 days of these Orders, the Independent Children’s Lawyer will meet with the children and explain the effect of these Orders.
6.By 4pm on 28 July 2023, the Independent Children’s Lawyer will personally serve a copy of these Orders on the Mother, and in the event that the Mother refuses to accept a copy of the Orders, that pursuant to Rule 2.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) service shall be deemed to have been effected by leaving a copy of the Orders at the front door at C Street, Suburb D in an envelope marked “Urgent Documents for [Ms Amsel].”
7.The Independent Children’s Lawyer is discharged following compliance with Orders 5 and 6 herein.
8.The Father shall pay to Legal Aid NSW the sum of $1,650.00 being the costs of the Independent Children’s Lawyer in the proceedings (noting that the Father has already paid $1,650.00 to Legal Aid NSW in satisfaction of these costs).
9.Leave is granted to the Mother to apply to set aside or vary these Orders within 21 days from the date of these Orders, provided that the Mother file an affidavit setting out the basis of the application and explaining her non-attendance at Court today.
10.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
THE COURT NOTES THAT:
A.The Mother was not present when this matter was before the Court today.
B.The matter proceeded to final hearing on an undefended basis today.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
These are settled reasons for judgment that were delivered orally on 27 July 2023. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
These are parenting proceedings for X born in 2010 and Y born in 2014, collectively known as “the children.”
The father seeks orders for sole parental responsibility and orders for the children to relocate to Country B. The father is employed by E Company and holds a temporary visa. This visa allows the father and his family to remain in Australia until late 2023 and it is the father’s evidence that it cannot be extended.
The mother has not filed any documents and has not appeared before the Court today.
I was assisted by a comprehensive Child Impact Report and material available from New South Wales Police, the Department of Communities and Justice and F Clinic and I note that they comprise the tender bundle of the Independent Children's Lawyer (“ICL”).
The father’s application is supported by the ICL.
ISSUES
The issues before the Court are:
(a)Should the Court proceed on an undefended basis?
(b)What Court orders should be made for parental responsibility?
(c)What time should the children spend with each parent?
(d)Should an order be made permitting international relocation by the father and the children and, if so, from what date can the father and the children relocate?
EVIDENCE
I have already noted in the proceedings before me the documents that are relied on and they are contained in the Outline of Case document of the father filed 24 July 2023 and the ICL’s Outline of Case document filed 25 July 2023.
I also note that there is a Child Impact Report dated 6 June 2023 (“Child Impact Report” or “Report”) and a tender bundle by the ICL.
The father was self-represented and the mother did not appear before the Court and there are no documents filed by her.
BACKGROUND
The father was born in 1982 in Country B. The mother was born in 1983 in Country G.
The parties commenced a relationship in 2009, moved in together in early 2010 and married in 2010.
There are two children of the marriage and they are X born in 2010 and Y born in 2014.
At the time of X’s birth, the family was living at City H where the father worked. The mother worked part-time as an educator.
Shortly after X’s birth, the father contends that the maternal grandmother Ms J (“the maternal grandmother”) moved in with the family and assisted in caring for X’s day-to-day needs. Shortly after X’s birth, the father contends that the parties agreed that they would apply for a Country B birth certificate and passport for him.
In 2014, X commenced kindergarten at an international school.
The father concedes that after Y’s birth, the maternal grandmother took responsibility for the children while the parents worked. The father says both parents cared for the children when they were at home.
In late 2016, the father received a promotion in City L, Country M. On moving to Country M, X commenced school at an international school and Y commenced attending at an international preschool.
In late 2018, the father was offered a promotion at E Company. The mother initially worked as an educator for a period of time and then, in late 2019, began working as a retail worker. The children were both enrolled at an international school.
In late 2019, the mother ceased working. The father contends that in and around this time the maternal grandmother returned to Country G.
The father contends that after the maternal grandmother returned to Country G, he took on the more primary role of caring for the children and that when he was not working he took on all of the day-to-day care of the children.
The father’s contention is that the maternal grandmother was due to return to Australia in February 2020, but was not able to due to the Covid-19 global pandemic.
From April to June 2020, the father contends that he was responsible for the children’s home schooling and day-to-day care.
In 2020, the father contends that he observed that the mother increased her alcohol intake and he observed her:
(a)Drinking excessively in her room;
(b)Refusing to leave her room; and
(c)Stumbling and talking incoherently.
In mid-2020, the father contends that the mother was referred to F Clinic at Suburb N and was treated as an inpatient by Dr O.
In mid-2020, the father contends that the mother relapsed and admitted herself to F Clinic for a short stay. Following her release, the mother attended weekly group sessions at the Clinic and attended private sessions with Dr O.[1]
[1] Exhibit ICL2 pages 36-41.
In or around mid-2020, the father contends that the parties commenced sleeping separately.
In late 2020, X commenced attending at an Occupational Therapist for Attention Deficit Hyperactivity Disorder and, while X was not fully diagnosed at this time, he remains on an Individual Education Plan to assist with his schoolwork.
In early 2021, the father contends that the mother commenced believing that she had “telepathic abilities” and was “working for the universe.” The father contends that on one occasion he found the mother shouting on the top of the garage roof.
In July 2021, the father contends that he attended a therapy session with the mother and the mother, during that session, told Dr O “You’re one of the spiritual guides from the universe, like Jesus.” Dr O is said to have replied “I’m not, but that’s your belief.”
In November 2021, the father contends that the mother ceased attending regular therapy sessions with Dr O and group sessions at F Clinic. The records indicate that the mother’s last therapy session with Dr O was in May 2022.[2]
[2] Ibid page 37.
In 2022, the father contends that the mother began expressing extreme views in relation to Country P and told the father that she would contact Dr O “telepathically” rather than attend therapy sessions.
In 2022, the father contends that the mother:
(a)Became isolated and ceased interacting outside of the home;
(b)Ceased speaking to the father;
(c)Spoke of the father’s supposed impending death in front of the children;
(d)Started to refer to the father as “the biological father” and would say to the children, “would you ask your biological father” to do various things she wanted him to do around the house;
(e)“Ramble” to herself and to the children about her “universal philosophies”;
(f)Would tell the children to shut up and go outside when they became upset by what she was saying; and
(g)Gave an object to Y for his birthday which she would then use to hit the children.[3]
[3] Ibid page 26.
The father contends that he received a voicemail from the mother that seemed to be a mistaken call. The father contends that during the voicemail he heard words to the following effect and that the voicemail was in the mother’s voice:
If you bring the damage to the earth, I will throw you out onto the street…I will push you out of the cliff if you bring the damage to the earth, universe…You will be proud of your mum. Now you are still too young to understand…I know who I am. I just give you a little bit, a little bit, psychological preparation, you will be very proud of your mother. About your father that’s your choice… I will push you out of the cliff if you break the universe law, big law.
In June 2022, the mother sent a text message to the father which read:
Your meat should be cut into…diced. Then fed to (pig). The reason why u [sic] know…cos [sic] you are not even reading basic human standard that means you are not qualified to be a human. You should be a low level animal. Not only you but u this type of humanity.
In July 2022, the mother sent a voice to text message to the father which said:
…[C]ontact with you just bring me some negative factors into me because you are rotten you are evil and you cannot even reach a basic level besic [sic] standards of being a human you deserve to go to hell and die and cut into pieces. Yes that’s what I said, good.
In mid-2022, the father said that he received an offer to work in Country B. The mother did not consent to the relocation. The father contends that the mother became violent towards him and tried to pull him out of the front door, ripped at his shirt and when he withdrew to X’s room, followed him and hit and scratched him in front of X. The father contends that X was crying and asked the mother to stop. The father says that the mother used an object to hit the door and when he tried to remove the object from her, she scratched at his body and head until he pushed her away.
Police records say that in mid-2022, the mother was placed under arrest and they issued an Apprehended Domestic Violence Order (“ADVO”) protecting the father. The mother was given a Conditional Release Order and a Final ADVO was issued in mid-2022. The ADVO is to expire in mid-2023.[4]
[4] Ibid pages 4, 9-13.
In late 2022, the father and mother attended Suburb D Police Station where they both signed parental consent for X’s passport.
Police records indicate that the mother is alleged to have breached the ADVO in early 2023 after she allegedly abused X by grabbing him by the shirt and dragging him outside and hitting him with a weapon. Police records indicate that the mother become angry at X and she picked up a weapon and walked into his bedroom. The records indicate that the mother took X outside the house, hit him with an object and made him stand on a wall for a period of time. While he stood there, the mother hit the wall around him.[5]
[5] Ibid.
In early 2023, records from the Department of Communities and Justice (“DCJ”) indicate that officers attempted a home visit. The mother declined to engage with the officers from DCJ and the children were assessed to be at risk of experiencing abuse.
The father contends that he prepares the children for school each day and ensures that they have completed their homework and that they have their lunches. The father contends the mother does not consistently care for the children and has forgotten to collect the children from the bus stop, resulting in the children entering the home by climbing through the window, and that she rarely feeds the children.
The father contends that the family continues to live in the former matrimonial home which is a small home. The mother sleeps with Y in a bed and the father sleeps with X in a large bed. The father clarified that in the event that orders are made today as he seeks and in the event that he and the children cannot remain at home, he has made arrangements to live where he currently works. Those arrangements have been made with his employer.
The children are in the sole care of the mother from when the father leaves for work in the morning until the children leave for school, and from the time they return from school until 6 pm to 6.30 pm in the evenings.[6]
[6] Child Impact Report by Ms Q dated 6 June 2023 [20].
PROCEDURAL HISTORY
On 12 January 2023, the father filed an Initiating Application.
On 10 February 2023, Orders were made in chambers by a Judicial Registrar. There was no appearance required from either party. The Orders included inter alia that:
(a)The mother file and serve her material by 4 pm on 28 February 2023;
(b)An ICL be appointed; and
(c)Pursuant to section 69ZW of the Family Law Act 1975 (Cth), production of material was requested from the New South Wales Police Service and DCJ.
On 14 February 2023, Orders were made in chambers by a Judicial Registrar. There was no appearance required from either party. Those Orders included that:
(a)The matter is designated an Evatt matter; and
(b)The matter is adjourned to 24 March 2023 for case management via Microsoft Teams.
On 24 March 2023, the matter was before a Judicial Registrar via Microsoft Teams. There was no appearance by or on behalf of the mother. The mother had not complied with the earlier filing directions.[7] Orders were then made for the preparation of a Child Impact Report. A future listing date was to be fixed.
[7] The word ‘not’ was omitted from this sentence in the oral delivery of the judgment in error.
On 13 June 2023, the matter first came before me. The father and ICL appeared in person. The mother did not appear. There was no compliance by the mother with earlier filing directions. I made the following Orders:
(a)A request for DCJ to intervene in the proceedings;
(b)A copy of the Child Impact Report was released to the ICL and DCJ;
(c)A further release of the Child Impact Report was adjourned for consideration to 16 June 2023.
(d)The ICL was to forward notice of the future listing date to the mother by registered pre-paid post to her residential address; and
(e)The Family and Advocacy Support Service (“FASS”) were requested to attend on 16 June 2023 to provide assistance.
The matter was listed before me on 16 June 2023. The father attended in person, as did the ICL. I note that a duty solicitor and a worker from FASS were also in attendance. I requested that the father speak to these officers.
Due to the concerns raised in the Child Impact Report about the risk to the children, I released the Report to the parents on a limited basis. The Report was to be read in the Court and no copies were to be made. I then made the following Orders:
(a)That the matter be listed for an undefended hearing on 27 July 2023 at 12 noon by Microsoft Teams;
(b)By no later than 13 July 2023, the parties file and serve any additional evidence that they intended to rely on;
(c)By no later than 20 July 2023, the ICL file an Affidavit of Service in relation to the service of these Orders on the mother; and
(d)By no later than 25 July 2023, the parties file and serve a Case Outline document.
The father and ICL have complied with the orders and directions. There have been no documents filed by the mother.
CHILD IMPACT REPORT
The Child Impact Report was ordered on 24 March 2023. The Report is dated 6 June 2023. Due to the contents of the Report, it has been released to the parties to be read in Court.
The Court Child Expert interviewed the father and the children. There was very limited engagement by the mother. At the conclusion of the interviews, the Court Child Expert made a report to the New South Wales Child Protection Helpline regarding concerns for X and Y’s exposure to psychological and physical abuse.
The Court Child Expert contacted the mother by telephone on 31 May 2023. The Court Child Expert offered the mother the phone number for the FASS worker. This was declined. The mother refused to participate and said it was her right not to participate. The mother said she did not agree with the children relocating, but did not provide an alternative and did not agree to be interviewed. I accept that this is a limitation to the Report and note that this is consistent with the mother’s lack of participation in these proceedings.
The Court Child Expert reported that the father described the home environment as “hostile and tense” and said that the mother is not involved in the care of the children. The father reported that prior to the decline in the mother’s mental health, she was very active and would go on bushwalks with the family and was involved in supporting the children and assisting with their schoolwork.
The Court Child Expert reported that the father expressed concerns about the impact of the home environment and, in particular, the mother’s mental health on the mental health of the children. The father reported that he believed the children grieved for their previously positive relationship with the mother. The father reported that X can become easily distracted and that X has been the target of the mother’s alleged physical abuse and excessive discipline. The father reported that X can become aggressive towards the mother and towards him:[8]
[X] can become aggressive and quite upset towards his mother, as well as [Mr Levin] when he feels that his father does not intervene. [Mr Levin] said that at times he finds it very challenging to intervene because he is worried about [Ms Amsel]’s reaction towards him or the children. For example, he said that [Ms Amsel] sent [X] outside recently at night-time as punishment, and he tried to tell her this is not right and she was verbally abusive towards him.
[8] Child Impact Report [9].
The Court Child Expert reported that X appeared somewhat reserved, but did a good job to express his views and experiences. Y was reported to be a happy child who appeared to have confidence in expressing his views. The Court Child Expert said both children described a positive relationship with their father and find him to be supportive of them and that he is involved in their daily routines.
In relation to the mother, the Court Child Expert said the following:[9]
With regard to the children’s descriptions of their relationship with their mother, the Court Child Expert is hesitant to provide the detail of their interviews, given that they both remain living in the same home as their mother. The Court Child Expert was left with significant concern about [X] and [Y]’s physical and psychological safety whilst living with their mother. The Court Child Expert is of the view that [Ms Amsel] has used excessive physical discipline with the children, which makes them feel upset and worried. [X] and [Y] indicated that they worry about their mother and that at times she can be quite angry with them and their father. The Court Child Expert has significant concern that [Ms Amsel] has wielded [weapons] in front of the children and that the children appear to be fearful of their mother.
[9] Ibid [13].
The children told the Court Child Expert that they were happy to relocate to Country B with the father and were excited at the thought of being in Country B.
The Court Child Expert said that if the children “continue to be exposed to a high-conflict, violent and hostile environment, this could have serious ramifications on their mental health, which in turn could negatively affect their behaviour, schooling and social relationships”.[10]
[10] Ibid [17].
The Court Child Expert recorded the concerns of the father about the mother’s declining mental health. When assessing this, the Court Child Expert said:[11]
[Mr Levin] expressed worries about [Ms Amsel]’s ability to meet the children’s needs and keep them safe, which he attributes to the decline in her mental health. [Mr Levin] is concerned about [Ms Amsel]’s excessive physical discipline of the children and her current limited ability to meet the emotional needs of the children. The Court Child Expert is of the view that [X] and [Y] have experienced troubling physical and psychological abuse by their mother. Of most concern is [Ms Amsel]’s use of [weapons] as a means of intimidation or potential self-harm. It is also worrying that [Mr Levin] is of the view that he cannot intervene when [Ms Amsel] disciplines the children, out of concern about her reaction. The children and [Mr Levin] appear to be at ongoing risk of physical harm. The Court Child Expert is particularly concerned about how the alleged abuse is taking a toll on [X]’s mental health, as he seems to be the target in the home and it is evident that he feels as though no one can help him when [Ms Amsel] mistreats him.
[11] Ibid [18].
The Court Child Expert assessed that the children are exposed to their mother’s poor mental health and are at risk of physical and psychological harm which could have serious detrimental long-term impacts on the children.[12]
[12] Ibid [23].
The Court Child Expert assessed that the children have a close relationship with their father and that the father has the capacity to provide a secure and stable base for the children. The Court Child Expert was concerned that the father’s responsibility as the sole income earner impeded his capacity to be available to the children on a full-time basis. As a result, the children remained exposed to risk when with the mother.
The Court Child Expert identified that the father could meet the children’s emotional and psychological needs and that the children were at risk from the mother. In those circumstances, the Court Child Expert said:[13]
[X] and [Y] both indicated that they would like to relocate to [Country B] with their father and it seems that they have formed these views due to their lived experiences, and it is quite evident that the children feel the safest in their father’s care. The children may have trouble being away from their mother, should she also not relocate to [Country B]. However, the children are in need of stability and certainty in their home environment and it seems that [Mr Levin] is best placed to provide this for the children.
[13] Ibid [25].
I accept the evidence of the Court Child Expert.
SHOULD I PROCEED TO AN UNDEFENDED FINAL HEARING?
The father and ICL made an application that the matter proceed on an undefended basis today.
The matter was called at 12 pm by telephone and at 12 pm outside of the courtroom. The matter was again called at 12.25 pm outside the courtroom and no appearance was noted on any of these occasions by the mother.
I am satisfied, on the basis of law and the facts, that this matter should proceed on an undefended basis for the following reasons:
(a)A litigant who does not participate in the proceedings or comply with orders and directions can expect the Court to take strong measures; and
(b)The Court must weigh the consequences for the non-compliant party in proceeding on an undefended basis against the interests of the Applicant and having the matter heard and determined without undue delay, expense or technicality.
Rule 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) allows me to proceed with an application in the absence of a party. I am also mindful that I am required to proceed without undue delay and with as little formality and legal technicality as necessary.[14]
[14] Family Law Act 1975 (Cth) s 69ZN(7) (“the Act”).
I have read the Affidavits of Service of:
(a)Mr R filed 25 July 2023, in which Mr R gives evidence that he handed a copy of the Orders of 16 June 2023 and a letter from the ICL to the mother. I accept his evidence that the mother said that she would not accept the documents and attempted to return them to Mr R. I accept his evidence that the mother walked to a bin and put the documents in the bin.
(b)Ms Bennett filed on 25 July 2023, in which Ms Bennett gives evidence that she sent a copy of the Orders of 16 June 2023 and a letter from the ICL to the mother by registered pre-paid post. I accept that the documents were returned to sender as the recipient, being the mother, refused to accept them.
(c)Ms S filed on 6 February 2023, in which Ms S handed the father’s Court documents to the mother who then tried to return them.
The Court Child Expert also telephoned the mother to engage with her in the Child Impact Report assessment and I accept the evidence of the Court Child Expert that the mother said it was her right to not participate in these proceedings.
I am satisfied that the mother is aware of today’s proceedings and is aware of the consequences of her non-attendance and non-compliance with orders. I am satisfied that the mother has been given the opportunity to participate in the proceedings and has chosen not to.
I will deal with this matter on an undefended basis.
THE LAW
I must have regard to Part VII of the Family Law Act 1975 (Cth) (“the Act”) and make parenting orders in which the best interests of the children are the paramount consideration. I must also be guided by section 60B of the Act which sets out the objects of Part VII and the principles that underpin it.
The best interests of a child are determined by a consideration of the relevant matters set out in section 60CC of the Act.[15]
[15] Ibid s 60CC(1).
In balancing these considerations, the Court must give greater weight to the need to protect the children from harm.[16]
[16] Ibid s 60CC(2A).
There are also a number of additional considerations in section 60CC(3) of the Act to which I must regard insofar as they are relevant. I must also have regard to section 61DA of the Act and note that the presumption can be rebutted if there is evidence to suggest to the Court that it would not be in the best interests of the child for a child’s parents to have equal shared parental responsibility for the child.
Family violence is defined in section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful.”
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence. This non-exhaustive list of examples includes assault, sexual assault, sexually abusive behaviour, stalking, repeated derogatory taunts, unreasonably denying financial autonomy or withholding financial support, preventing a family member from making or maintaining connections and unlawfully depriving the family member of their liberty.
A child is said to be exposed to family violence if they see or hear family violence or otherwise experience its effects.[17] This may include seeing or hearing an assault of a family member by another family member, comforting or providing assistance to a family member following an assault or overhearing them.[18]
[17] Ibid s 4AB(3).
[18] Ibid s 4AB(4).
ASSESSMENT OF RISK
An assessment of risk thus requires two elements: the consideration of whether it is likely that some harmful event will occur, and then a consideration of the severity of the impact caused by such harmful event.[19] I must assess and evaluate the magnitude of any risk to determine whether that risk of harm is unacceptable.[20] The assessment of unacceptable risk thus includes a predictive exercise postulated from known events and present circumstances, bearing in mind that this is an undefended hearing.
[19] Deiter & Deiter [2011] FamCAFC 82 at [61].
[20] M & M (1988) FLC 91-979.
It is to be observed that the reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for these “possibilities”.[21]
[21] Bant & Clayton [2015] FamCAFC 222 at [99].
As for risk or unacceptable risk, which is at the heart of the father’s case, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 that past allegations of violence and abuse are to be determined by reference to section 140 of the Evidence Act 1995 (Cth). The Full Court added that the assessment of unacceptable risk cannot be measured by the civil standard of proof.[22] Rather, I look to “possibilities.”
[22] Isles & Nelissen (2022) FLC 94-092 at [86].
The mother’s alcohol misuse, mental health and outbursts of physical and verbal violence lead me to conclude that the mother poses a risk to the children.
There is no evidence before me of current treatment or engagement in therapy by the mother. There is no evidence before me that the mother acknowledges that she is a risk to the children and the mother has not engaged with this Court process.
I accept the evidence of the Court Child Expert and the uncontested evidence of the father. In doing so, I accept that the children have been exposed to:
(a)Direct physical abuse by the mother, especially X;
(b)Verbal abuse and threats by the mother, including threats to cause lethal harm to the children and the father;
(c)Physical threats by the mother, including the use of a weapon in those threats;
(d)The mother’s alcohol misuse;
(e)The mother’s poor mental health;
(f)Neglect as a consequence of the mother not attending to their everyday needs, including collecting them from the bus stop, having to break into the house because the mother will not open the door, and the mother not feeding the children;
(g)Family violence where the mother has been the perpetrator of violence against the father and the children;
(h)The mother’s threats of harm, including harm to the children, father and herself; and
(i)The mother’s beliefs.
During an interview with DCJ, X spoke of being hit regularly by his mother and that he “takes” Y’s punishment from the mother to protect Y.[23] During the same interview, Y spoke of being hit in the back of the head with an object and that the mother hit him on the legs. Y said that the mother gives them “an option of being hit with [an object] or [a weapon], but I always pick [the object]”.[24]
[23] Exhibit ICL2 page 19.
[24] Ibid page 23.
I find that the children are at unacceptable of harm from the mother.
I find that the father does not pose an unacceptable risk of harm to the children and I accept the assessment of DCJ that the children are at risk in the mother’s care and that the father is a protective person to them. DCJ concluded that the mother’s behaviour was “highly likely to cause serious injury to the children”.[25] I accept this assessment and I have no material before me which would provide me with any information from the mother as to how the risks she poses for the children could be ameliorated.
[25] Ibid page 34.
I accept the view of the Court Child Expert that the children’s current living environment is unpredictable and I have significant concerns about the children’s safety while they and the father live in the same house as the mother.
There is no evidence from the mother or any other person which would allow me to conclude that the risks posed by the mother can be mitigated in any way.
ADDITIONAL CONSIDERATIONS
What are the children’s views?
The children have expressed their views that they wish to relocate to Country B with the father. The children have attended Country B schools throughout their education and have extended family in Country B. They also speak Country B language fluently.
The children are fearful of their mother and have expressed their fears to the Court Child Expert. I accept the evidence of the Court Child Expert and I accept that the children’s views are based on their lived experiences.
What is the nature of the relationship between the children and each of their parents and grandparents?
I accept that the children have a close and loving relationship with the father. The father provides the children with a stable and secure home insofar as he can, given the chaos that is clearly evident in the home.
Whilst some criticisms have been raised by the Court Child Expert and the children that the father has failed to protect the children from the mother, I accept that this is a complex and difficult situation for all of them.
The mother has significant mental health and historical alcohol misuse issues. The father is the sole income earner for the family. The family are in Australia on the basis of the father’s work visa. The father’s evidence, which I accept, is that he has provided significant care for the children and has shielded the children from the mother when he is at home.
I agree with the Court Child Expert that the children’s relationship with the mother is difficult. The children have been exposed to her unmanaged mental health, unusual views and beliefs, and dysregulated behaviour. As a consequence of this, the children do not presently have a good relationship with the mother. I find that the father is insightful when he tells the Court Child Expert that he believes the children grieve the loss of their previous relationship with the mother.[26]
[26] Child Impact Report [9].
What is the parents’ capacity to participate in decisions about the children?
The mother’s capacity to participate in decisions affecting the children is severely compromised. The father attempted to speak with the mother about relocation and this led to an assault on the father by the mother. The mother has not participated in the safety assessments by DCJ and the mother has failed to participate in these proceedings. Whilst I have no evidence from the mother, I accept that the mother has a compromised capacity to participate in decisions affecting the children.
The father has a good capacity to make decisions in relation to the children. His application to this Court is reasonable and is based on the reality that his family is in Australia on the basis of the work visa. That visa expires in late 2023. An urgent discussion was needed between the parents. The father attempted to do this and the mother’s response resulted in the criminal conviction against the mother for assault.
What will be the effect of change on the children?
The father’s application is for the children to relocate with him to Country B. I am not able to assess whether the mother intends to travel with the family. I do find that the father’s visa expires in late 2023 and that the mother is dependent on the father’s visa. I accept the view of the Court Child Expert that the children are familiar with Country B and their Country B family. I accept that the children have attended Country B schools both in Australia and overseas and I accept that the children are fluent in Country B language.
What are the advantages of the proposed relocation?
The children will be living with their father who the children have a close and loving relationship. The children feel safe with their father and I accept the views of the Court Child Expert that the father will be able to provide them a safe and secure home.
The children will have the benefit of living close to the extended paternal family.
The extended family will be able to provide the father with support which will assist him to recover from what has been a dysfunctional, violent and difficult relationship with the mother.
The father is likely to be employed by his long-term employer and, as a result, will have the capacity to meet the children’s physical needs of accommodation, food and schooling.
What are the disadvantages of the proposed relocation if the mother does not move with the family?
I accept that the children will grieve the relationship that they previously had with the mother.
It is likely that given the mother’s underlying mental health condition that she will be unable to maintain a long-distance relationship with the children and it is therefore possible that there will be a severing of that relationship.
What is the practical difficulty and expense of the father’s proposal?
In the absence of the mother’s evidence, I cannot assess this ground.
I can anticipate that if the mother does not travel with the family to Country B, there will be an expense and difficulty in the children spending time with the mother.
I also anticipate that, in the event that the mother does not receive treatment for her mental health and underlying alcohol misuse, then the children will be at risk of physical and emotional harm if they were to spend time with her.
What is the capacity of each of the parents to provide for the needs of the children?
I accept the uncontested evidence of the father that he has the capacity to provide for the future needs of the children. The father’s proposal to relocate to Country B is made on the basis that his work visa to Australia is expiring and cannot be renewed. The father has an offer of employment in Country B with his long-term employer.
In the absence of evidence from the mother, I find that she does not have the capacity to provide for the future needs of the children. There is no alternate proposal to what the father has put forward.
What is the maturity, sex, lifestyle and background of each parent?
The father is mature and focused on ensuring that he meets the children’s needs. The father’s proposal for the children is appropriate given the upcoming expiration of his temporary work visa.
I accept the evidence of the Court Child Expert that the mother has an underlying mental health condition and this is impinging on her parenting capacity.
Have the children been exposed to violence?
I find that the children have been exposed to family violence.
I find that the mother has perpetrated family violence towards the father in the presence of the children.
I find that the mother has perpetrated family violence towards the children and has hit them with an object causing them pain, has threatened to hit them with a weapon and has hit Y in the back of the head with a weapon. This has caused pain, fear and distress to the children.
I accept the evidence of the Court Child Expert that the mother has used a weapon to threaten and intimidate the children and the father.
I accept the evidence of the father that the mother has left messages where she threatens to cause him physical harm and I accept the evidence of the father that, when speaking to the children, the mother has threatened to throw them off a cliff.
There is a current ADVO in place protecting the father and the children. The mother has been charged with a breach of that Order. I accept that the ADVO was put in place after the mother assaulted the father and I accept that X was present when this occurred.[27] I accept that the mother is facing a breach of the ADVO and that is due to be heard in mid-2023. The father tells the Court that the mother is not permitted to leave Australia prior to that date. He further tells the Court that he and X have been subpoenaed to be witnesses.
[27] Exhibit ICL2 pages 1-7.
I find that the mother has no insight into the inappropriateness of her conduct. I find that the children are at risk of significant violence by the mother and I have no evidence before me that would allow me to find that that risk is in any way ameliorated by the mother.
I do find, however, that the risk is ameliorated by the father. In particular, I find that DCJ found that the father was a protective factor for the children. I accept this evidence and find that the children are not at risk of family violence in the care of the father.
Is it preferable to make an order that will not lead to further proceedings?
The mother has not participated in these proceedings. The orders I make for the children’s relocation will provide time for the mother to receive the decision and to avail herself of any appeal right and also any right to come back before the Court to ask me to reopen the proceedings.
Is there any other fact or circumstance that the Court thinks is relevant?
In this matter, the children are dependent on their father’s work visa for their right to remain in Australia. The father’s visa expires in late 2023. The father’s proposal will allow for an orderly relocation.
There is no evidence before me that there is any other option available for the children to legally remain in Australia.
PARENTAL RESPONSIBILITY
For the reasons above, I find that it is in the children’s best interests that the father hold sole parental responsibility. I find that the father has acted protectively of the children.
I find that the mother is an unacceptable risk to the children and I find that that risk is present and ongoing. I find that that risk exists because of the mother’s untreated mental health and the physical violence that she has perpetrated against the father and the children.
SHOULD THE CHILDREN RELOCATE TO COUNTRY B?
The father’s visa expires in late 2023. The evidence before me is that the children’s and mother’s residence in Australia is dependent on the father’s work visa.
Having considered through this judgment the advantages and disadvantages of the father’s proposal for relocation, I am satisfied that his proposed orders are in the children’s best interests.
FROM WHAT DATE CAN THE CHILDREN RELOCATE?
I note that during the course of today’s hearing, I raised this issue with both the ICL and the father. I asked the father to consider whether he would postpone relocation for the appeal period. The father indicated that he would.
In the circumstances, I will permit relocation of the children 29 days after the date of today’s Orders. That is the period during which the mother can appeal if she so chooses. The date for the father to be permitted to relocate with the children is August 2023. I note the father consented to this.
I also make an order granting leave to set aside today’s Orders, pursuant to rule 10.13(1)(a) of the Rules, within 21 days on the condition that the mother files an affidavit explaining her absence from Court today and setting out the basis of her application. I note that this order is also made with the consent of the ICL and father.
ORDERS FOR THE CHILDREN TO SPEND TIME WITH THE MOTHER
I am satisfied that the father will adopt an appropriate position in relation to the children spending time with their mother.
It is difficult for me to assess what will be appropriate in circumstances where there is no evidence by the mother. I do not know, for example, if the mother will travel with the children and the father to Country B. I have no evidence of how, on a practical basis, time between the children and the mother will occur.
I will make orders, however, that the father will determine when the children will spend time with their mother as I am satisfied he will make decisions which are in the children’s best interests and which are child-focused.
CONCLUSION
I make the above Orders.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Lioumis. Associate:
Dated: 3 August 2023
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